A recent food poisoning case in Georgia brings to mind thoughts on both good and bad news for the food industry. While food companies should certainly be held liable when the cause of a foodborne illness is traced back to them, they also do need to be able to defend themselves in situations where there is no evidence of cause. In the case of Big Kev’s Barbeque, the courts’ decisions leaned in both directions, with the most recent verdict declaring that the decision should be put in the hands of a jury. Here’s the story. Joshua and Taylor Patterson became ill after eating food at a wedding rehearsal dinner prepared, catered, and served by Big Kev’s Barbeque. About three days later, Joshua ended up in the emergency room after becoming violently ill, where he tested positive for Salmonella; though not tested, his wife also was treated for Salmonella after becoming ill. When the couple learned that other guests had also become ill, they sued the caterer for negligence, violation of the Georgia Food Act, and products liability, alleging that the food at the dinner was defective, pathogen-contaminated, under cooked, and negligently prepared. Although testimony was given by other guests who became ill and said they had eaten only Big Kev’s catered food, the Pattersons had consumed other food and drink at both the rehearsal dinner and the wedding. Additionally, the owners and a number of employees of the event venue ate food prepared by Big Kev’s and did not report any illness, and consumption of all 40 or so guests had not been determined. Thus, the appellate court judge granted summary judgement in Big Kev’s favor based on limited discovery by the plaintiffs, holding that “the Pattersons had failed to exclude every other reasonable hypothesis regarding the cause of their illness.” But the story doesn’t end there. The Pattersons appealed to the Court of Appeals, which affirmed by a whole court vote of 5-4. However, two of the dissents listed the evidence supporting the Pattersons’ claims and pointed out that “the standard established by the majority was more appropriate for the burden of proof at trial rather than on motion for summary judgment. Thus, it granted the Pattersons’ petition for writ of certiorari – that is, a review of the case by a higher court, which took the case to the Supreme Court of Georgia. On August 20, 2018, that court published its decision, reversing the lower courts decision and sending the case back to the trial court where it began. In the final statement of the 15-page document, Justice Michael P. Boggs states, “While the evidence presented by the Pattersons was circumstantial, it went well beyond the general allegations of the plaintiffs in those decisions, and the circumstantial evidence presented by Big Kev’s failed to rebut it. Under these circumstances, Big Kev’s has failed to demonstrate the absence of evidence of proximate cause. The trial court’s order granting summary judgment on that issue therefore must be reversed.” So both the Pattersons and Big Kev’s stand to fight another day – this time in front of a jury. What does all this mean? My take on it is that if you are ever in a foodborne illness trial – whether as plaintiff or defendant – you’d better have the documentation to back up your side if you go for a summary judgement. Although the decision was reversed by the State Supreme Court, it was not a decision of guilt of the caterer, rather it was that the judge should have allowed the case to go to a jury trial, rather than issuing a Summary judgement. As stated in the 2017 decision of the Court of Appeals of Georgia, “To prevail on their claim at trial, the Pattersons must show that every other reasonable hypothesis as to the cause of their illness can be excluded.  … But that is their burden of proof as the plaintiffs at trial. That is not their burden as the nonmovants opposing a motion for summary judgment.” I find three other court statements to be very telling: “The evidence shows that the only common food that the Pattersons and the four witnesses (who also became ill) ate was the food served by Big Kev’s. The diagnosis of Salmonella and this testimony are sufficient to exclude the alternative hypotheses posited by Big Kev’s as to the cause of the illness.” (Boggs) “While a plaintiff may prevail in a food poisoning case by establishing that the food was defective or unwholesome, in the absence of direct evidence that the food was contaminated, a plaintiff’s circumstantial evidence must exclude every other reasonable hypothesis as to the cause of the plaintiff’s illnesses.” (Court of Appeals majority). This is much more difficult in an isolated case then when there are multiple illnesses all with the same food exposure. “We find that the standard that has developed over the years in the Court of Appeals has conflated cases at both the trial and summary judgment stages, thus creating the mistaken impression that food poisoning cases ‘are a unique species of negligence cases’ imposing a heavier burden upon the plaintiff.” (Supreme Court Justice Michael Boggs) And one thing they tell me is that the burden is heavy on both sides. But what the courts are seeking is evidence to enable them to make a fair decision. It is a case for which whole genome sequence (WGS) testing could potentially have played the Ace for either side – especially if Salmonella was found in the food A match: guilty; no match: innocent. That is however a high stakes game, and if, as the defendant, there is a WGS match between your food and the isolate in the patient that is a tough one to get out from under.  Lacking that – which at this point is impractical at best – it is likely a matter of having the documentation to show due diligence (e.g., your Food Safety Plan), testing (e.g., environmental monitoring and controls), training and oversight during food preparation, and hopefully an absence of poor inspections of your facility. My overall takeaway from this case and many others I have worked on is that summary judgement can be a swift end to a case, but as this case illustrates, it can also backfire on you.  From a practical perspective I think it is important to really understand the strength of your case, and if you are looking weak and vulnerable, plan on a settlement and not a jury trial. The latter are unpredictable and could go very much against you even if you think you have a solid case. About The Acheson Group (TAG) Led by Former FDA Associate Commissioner for Foods Dr. David Acheson, TAG is a food safety consulting group that provides guidance and expertise worldwide for companies throughout the food supply chain. With in-depth industry knowledge combined with real-world experience, TAG’s team of food safety experts help companies more effectively mitigate risk, improve operational efficiencies, and ensure regulatory and standards compliance. Learn more at: www.AchesonGroup.com